White v James Hardie New Zealand
[2018] NZHC 1627
•3 July 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2981 (WHITE)
[2018] NZHC 1627
BETWEEN KAREN LOUISE WHITE AND THE PERSONS LISTED IN SCHEDULE 1
Plaintiffs
AND
JAMES HARDIE NEW ZEALAND
First Defendant
Hearing: 2 July 2018 Counsel:
B Gray QC and J Cooper QC for Plaintiffs
J E Hodder QC and J McKay for Defendants
Judgment:
3 July 2018
JUDGMENT OF WHATA J
This judgment was delivered by me on 3 July 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Adina Thorn Layers, Auckland
Chapman Tripp, Auckland
Commerce Commission, Wellington
WHITE v JAMES HARDIE NEW ZEALAND [2018] NZHC 1627 [3 July 2018]
AND STUDORP LIMITED
Second Defendant
AND
JAMES HARDIE NZ HOLDINGS
Third Defendant
AND
RCI HOLDINGS PTY LIMITED
Fourth Defendant
AND
JAMES HARDIE AUSTRALIA PTY LIMITED
Fifth Defendant
AND
JAMES HARDIE RESEARCH PTY LIMITED
Sixth Defendant
AND
JAMES HARDIE INDUSTRIES PLC
Seventh Defendant
CIV-2015-404-3080 (WAITAKERE GROUP LIMITED)
BETWEEN WAITAKERE GROUP LIMITED & ORS
Plaintiffs
AND JAMES HARDIE NEW ZEALAND
First Defendant
STUDORP LIMITED
Second DefendantJAMES HARDIE NZ HOLDINGS
Third DefendantRCI HOLDINGS PTY LIMITED
Fourth Defendant
JAMES HARDIE AUSTRALIA PTY LIMITED
Fifth DefendantJAMES HARDIE RESEARCH PTY LIMITED
Six DefendantJAMES HARDIE INDUSTRICES PLC
Seventh Defendant
[1] The plaintiffs in two proceedings, CIV-2015-404-2981 (the White proceedings) and CIV-2015-404-3080 (the Waitakere proceedings) seek a staged trial. The central claim in both proceedings is that the defendants manufactured, supplied and/or promoted defective exterior cladding products sold under the brand names “Harditex”, “Monotek” or “Titan” (the James Hardie Products). Approximately 1,246 properties are claimed to be clad with defective James Hardie Products and, of those properties, 1,236 are residential homes, five are commercial buildings and five are retirement villages. The five retirement villages are the plaintiffs in the Waitakere proceedings.
[2] The plaintiffs submit that it is impractical to conduct a single trial of all issues relating to all properties. Instead, they say the trials should be staged with the first stage addressing the following summary of common issues between all plaintiffs and defendants, namely:
(a)Whether each of the defendants owe the plaintiffs a duty of care;
(b)Whether the defendants breached those duties of care;
(c)Whether the defendants’ conduct, and statements made in the product literature for the James Hardie Products were misleading and deceptive for the purposes of the Fair Trading Act 1986; and
(d)Whether the James Hardie Products failed to comply with the statutory guarantees of acceptable quality and correspondence with the description under the Consumer Guarantees Act.
They also seek orders confining discovery to the stage one issues together with the setting down of a trial date.
[3] A statement of the common issues, based on the pleadings, is attached as schedule 1. Detailed expert evidence was filed in support of the application. In summary the expert evidence, based on decades of experience, suggest that the James
Hardie Products have been since the early 1990’s systemically defective and the cause of water damage to affected properties.
[4]The application is opposed on the grounds that:
(a)It is premature until appropriate discovery and inspection is complete;
(b)James Hardie requires information before it can participate in case management decisions;
(c)Any division of tort claims that severs the essential elements of damage, reliance, foreseeability and causation is unprincipled.
(d)Issues of causation and damage are integral to the determination of the alleged defects, as acknowledged in the schedule of issues;
(e)Any separation of issues is likely to cause confusion;
(f)Alternatively, the first stage should extend to all issues save scope of repair, cost of repair, quantum and contributory negligence.
[5] The defendants have also produced expert evidence, similarly based on decades of experience, to suggest there are no systemic defects in the James Hardie Products. Rather they say poor workmanship or building design is the likely cause of any water damage at affected properties.
Result
[6] The early demarcation of common issues for staged trial broadly in accordance with schedule 1 will enable a just and effective determination of the proceedings. However, the final demarcation of the common issues for a stage one trial should be finalised after a process of tailored discovery and inspection in relation to a preferably agreed sample of plaintiff properties. If the scope of discovery and inspection cannot be agreed, the Court will intervene. Timetabling orders enabling the discovery process are proposed for comment at [22].
[7]My reasons now follow.
Threshold
[8] The objective of all case management is to secure the just, speedy and inexpensive determination of any proceeding.1 To this end, threshold issues for a staged trial (preliminary question) were recently restated by Fitzgerald J in Minister of Education v James Hardie Ltd (the Shadowclad litigation):2
(a)Whether there will be difficult demarcation questions between those issues to be addressed at the first trial and those left for the second;
(b)Whether the separate question will bring proceedings to an end;
(c)What potential time-saving the separate question may offer;
(d)How appeals will be dealt with; and
(e)Whether there are any other practical considerations tending one way or another (which might include, for example, the effect on interrogatories and discovery).
[9] As Fitzgerald J also noted, some helpful guidance may be gleaned from the parallel Cridge litigation dealing with representation. There, the High Court3 and the Court of Appeal4 had little problem making representative orders in respect of several hundred claims about “inherent defects” allegedly plaguing James Hardie Products, noting that the common issues permeating the claims were amenable for separate determination from individual loss claims. Relevantly, the Courts were dismissive of concerns raised by Mr Hodder QC about principle, complexity and trial unfairness. I return to the significance of their observations below.
1 High Court Rules 2016, r 1.2.
2 Minister of Education v James Hardie Ltd [2018] NZHC 1481 at [24].
3 Cridge v Studorp Ltd [2015] NZHC 3065.
4 Cridge v Studorp Ltd [2017] NZCA 376.
Assessment
[10] As foreshadowed, I am satisfied that a staged trial broadly in accordance with the schedule 1 issues, is more likely to secure a just, speedier and less expensive determination of the proceedings than an orthodox full trial process, subject to careful case management dealing with discovery, inspection and expert caucusing.
[11] First, as I think Mr Hodder accepts, given the sheer number of plaintiffs, common sense suggests demarcation of the trial into stages, involving a split between genuinely common issues and individual claims, is to be preferred.
[12]Second, in substance the pleadings claim that (among other things):
(a)The defendants owed common duties to all the plaintiffs, whether in common law or statute;
(b)The defendants breached those common duties to all the plaintiffs in the same way;
(c)The James Hardie Products suffer from systemic defects and risk characteristics affecting all plaintiffs;
(d)The breaches of the common duties and correlated systemic defects and risk characteristics caused similar types of damage to all of the plaintiffs.
[13] These allegations are plainly justiciable without a full trial on individual claims. Any objections of complexity and principle were fully addressed in the Cridge and Shadowclad decisions. Ellis J put it this way in the parallel Cridge proceedings:5
[61] In my view, the claims as pleaded do raise issues of duty and breach which might fairly be said to be “the same” or sufficiently common for representative purposes. And the question of “breach” relevantly includes further common sub-issues, namely:
[a]Whether the alleged inherent defects exists and if so;
5 Cridge v Studorp Ltd, above n 3, at [61]-[62].
[b]Whether they were the result of the pleaded failures of design, manufacturing and testing; and
[c]Whether those failures were negligent by reference to the applicable industry standards and knowledge at the time.
[62] While I accept that the existence and scope of duty will often be linked to questions of causation and damage which, as I have said are necessarily individual, I do not consider that variations that might exist between claimants here would be at all likely to lead to different conclusions about duty. On the contrary, I would expect that matters of proximity and policy identified by the Supreme Court (and the Court below) in Carter Holt as being relevant to the existence of such a duty will be materially the same or similar as between claimants in the proposed class.
[14]The Court of Appeal in the same matter similarly noted:6
[28] Like Ellis J we accept the existence and scope of a novel duty is generally fact-intensive inquiry and often linked to questions of causation and damage which in this case are individual issues. However, like Ellis J we also consider it most unlikely that any variations that might exist as between the claimants in this case would lead to different conclusions about duty.
[29] We are fortified in that conclusion by the recent Supreme Court decision of Carter Holt Harvey Ltd v Minister of Education. It too concerned a negligence claim by a building owner against the manufacturer of building systems for loss due to water ingress. The manufacturer sought to strike out the claim on the grounds it was not arguable it owed a duty of care to the owner. The Court rejected that submission and in doing so made it clear that the key proximity and policy considerations that should inform the duty question at trial are of a general nature and not peculiar to the individual parties.
[30] Those key considerations were the parties’ relationship described in a generic way as that between ultimate consumer and manufacturer; the contractual matrix (which in the case of the construction of residential properties will be reasonably standard); the statutory framework which will only vary on a time basis; and the vulnerability of the plaintiff, in relation to which the Supreme Court significantly said it “must be looked at not in relation to the plaintiff in the case at hand but in relation to likely plaintiffs as a class”.
[31] We are satisfied the sorts of considerations identified by the Supreme Court will be materially the same or similar for all claims in this case and accordingly the duty issue is well suited to a representative hearing.
[32] In relation to breach the question will be whether James Hardie met the standard of care reasonably expected in the circumstances of a manufacturer of relevant products. As Ellis J noted, this will involve sub- issues as to the existence of alleged inherent defects, whether they were the result of pleaded failures of design, manufacturing and testing as alleged and whether those failures were negligent by the applicable standards and
6 Cridge v Studorp Ltd, above n 4, at [28]-[32].
knowledge of the time. All of those issues are common issues and will involve the examination of a common factual matrix – namely, what James Hardie knew, did, or omitted to do leading up to and following the release of the relevant products into the marketplace. To require the same evidence to be given in respect of each claim would clearly be a wasteful duplication. On finding that the product and system have inherent defects must by its very nature be of general application.
[15] By parity of reasoning, difficulties raised by Mr Hodder in this case regarding for example the difference between individual products and cladding “systems”, the changes in product information over time, or the variations in weather across New Zealand are not sufficient to deny a staged trial, broadly based on a demarcation between identification of common duties and breaches on the one hand, and causation in individual cases on the other. I note the negligent misstatement and the consumer guarantee claims were not pleaded in the Cridge proceedings. But it was not suggested that these claims, based essentially on the same pleaded facts, are any more or less justiciable on a generic basis than the other pleaded claims.
[16] Third, the generic allegations of common duties, breach, systemic defects, risk characteristics and damage are sufficiently demarcated (as summarised in the attached schedule of issues) to enable the defendants to answer them without a trial contemporaneously on issues of reliance, foreseeability and causation in each individual case or on quantification of individual losses. As Fitzgerald J concluded in Shadowclad, the unifying claim that the James Hardie Products were never fit for purpose is amenable to separate resolution. The expert evidence provided by the defendants does not persuade me otherwise:
(a)Dianne Johnson, a registered building surveyor of over 15 years’ of directly relevant experience, identifies methodological flaws in the weathertightness assessments undertaken by the plaintiff’s corresponding expert, Mr Dalton, and recommends an approach to enable reliable investigation of James Hardie Products, and in particular the identification of leak pathways. Based on this evidence, the issue at trial will be whether the correct investigative approach was adopted across a sufficient sample of affected properties to prove the existence of systemic defects and risk characteristics.
(b)Kevin Longman, a building consultant with 52 years’ experience in the New Zealand building industry, provides an overview of applicable building standards, acceptable methods and alternative methods during the key periods subject to claim. He opines, among other things, that the James Hardie Products were supported by the leading or most comprehensive technical literature on the market, and Harditex was BRANZ approved in 1995 and that the BRANZ approach was reasonable and consistent with industry approach in the 1990s. He also says there is no evidence to support the view that Harditex cladding systems had a history of poor performance and it was not sufficient to cause a manufacturer to believe there was a fundamental flaw. Furthermore, in his experience he has not seen sufficient evidence to justify a conclusion of inherent defects and by far the most common cause of water penetration is poor workmanship. Based on his evidence issues at trial will be whether the performance of Harditex cladding should have caused a manufacturer to believe the Products were flawed, and whether poor workmanship, not design, caused water damage.
(c)Joseph Lstiburek is a building science consultant with extensive expertise in the principles of water management and their application to cladding systems. In his view, the Harditex literature is similar in quality to the information supplied by manufacturers of similar size in North America at the same time. He disagrees with the plaintiffs’ experts that there are inherent defects in the Harditex cladding system noting that the mechanisms of water ingress and egress are substantially influenced by factors particular to the building environment. He then identifies four mechanisms (gravity, momentum, wind pressure and capillarity) by which water enters. The central issue for any water management system is rate-storage, with problems only arising when building components get too wet and or do not dry quickly enough. He notes that building regulation that, for example, affected vapour diffusion were not adopted by New Zealand, so that buildings in New Zealand have higher drying potential. He also describes three types of cladding systems in common use (face sealed, concealed and rain
screen), and notes that Harditex was a concealed barrier system, involving two barriers – a primary barrier and a secondary (building wrap) barrier, which enables drainage to occur. While vapour flow is limited by this system, it will occur. In his view, therefore it is an appropriate water management system and superior to then existing traditional systems. He also disagrees the James Hardie Products are inherently defective because of the variables he has mentioned. Based on his evidence, a central issue will be whether the Harditex water management system was appropriate to New Zealand conditions and/or whether the variables in build design affected cladding performance.
[17] I acknowledge Mr Hodder’s complaint that the proposed stage 1 issues will require at least some assessment of whether alleged breaches of common law or statutory duties caused damage and whether the defendants knew or ought to have known that those breaches would or might cause that damage. This calls for proof of both causation and foreseeability of damage. But, the generic causation and foreseeability claims are capable of proof or rebuttal without each individual claim, or even a large number of them, on these matters having to be proved or rebutted. The central point for debate, as clearly evident from the expert evidence, is whether water damage was caused by (a) systemic defects and risk characteristics (known or ought to have been known to the defendants) (b) poor workmanship or (c) building design. As Fitzgerald J also concluded in Shadowclad,7 the plaintiffs carry the onus of proving the former, and will need to bring sufficient evidence, including real world examples, to make their case. The defendants may, if they wish, identify real world examples to rebut it. But it is not necessary to prove or rebut circa 1,200 claims to resolve the common issues.
[18] Fourth, resolution of the generic allegations of common duties, breach, systemic defects and risk characteristics, and resultant damage should enable the claims to either be dismissed outright or lay the foundation for claims of individual loss. This should bring significant time savings.
7 Minister of Education v James Hardie Ltd at [65]-[66]
[19] Fifth, I accept however that more caution is required in the present case, as we are not dealing with issues of representation per se, or claims largely based on ubiquitous building design amenable to proof via lab testing, but with the nature, form and scale of proof required at trial for claims spanning a multiplicity of locations and building designs. This requires a closer look at the mechanics of trial preparation and how they bear on the right of a defendant to a fair hearing. Notably also the Cridge trial will involve a full trial in relation to particular claims so the nexus between alleged duty, scope of duty, breach, reliance and causation will be ventilated before the trial judge.
[20] In this regard, Mr Hodder’s concern about the scope of pre-trial discovery and inspection is valid. The defendants must be able to conduct a defence to breach of duties and corresponding alleged systemic defects and risk characteristics with the benefit of information, within the control of the plaintiffs, that might support the defendants’ primary defence, namely that in situ workmanship, not design, is the sole or primary cause of loss. It is as he says, as an aspect of the rule of law.
[21] Nevertheless, this is not a reason to decline a staged trial process based on clearly pleaded common issues. Rather, as anticipated by the Court of Appeal in Cridge, it is a reason for a robust, tailored discovery and inspection process, which is likely to benefit from expert caucusing (as it does in the earthquake litigation context) together with active case management. It may also involve further refinement and subcategorization of the common issues once tailored discovery and inspection is complete. But in my view, a case that canvasses causation across a representative sample of properties it likely to be more useful than the process in Cridge where all issues were heard but only in relation to a few properties. Finally, miscellaneous issues, such as the overlap with the Cridge proceeding and setting down a trial date can be addressed if necessary once tailored discovery and inspection is completed.
Outcome
[22] It is just and efficient to case manage the White and Waitakere proceedings by way of staged trial on the common issues listed in schedule 1, but subject to potential for refinement following a tailored discovery and inspection process. Accordingly,
there shall be an order directing a staged trial in accordance with the common issues stated in schedule 1, with leave granted to any party to seek refinement of the issues following discovery and inspection. I also propose the following directions:
(a)The parties will have 20 working days to agree the scope of tailored discovery directed to the issues stated in schedule 1;
(b)If the parties are not able to agree the scope of tailored discovery, there shall be expert caucusing on:
(i)The number of properties;
(ii)The location of the properties; and
(iii)The types of the properties;
that should be subject to discovery and inspection.
(c)The expert caucusing is to be completed within forty working days of this judgment and a joint report prepared for the parties.
(d)The parties must file a joint application, or failing agreement, separate applications for discovery and inspection, having regard to the joint expert report within 50 working days of this judgment.
(e)A further case management conference will also be scheduled for the first available date thereafter, with timetabling set down for a hearing on any discovery application if needed, or alternatively for timetabling for the completion of the discovery and inspection process, and any other timetabling orders as the parties consider necessary.
(f)Leave will be reserved to any party to seek further assistance of the Court.
[23] If the parties do not agree with the proposed orders dealing with discovery and case management, they must file memoranda by 5 pm Thursday, suggesting alternative orders. If necessary I will convene a telephone conference to address remaining issues on Friday, 6 July 2018. Otherwise the orders will be effective.
Costs
[24] The application has been largely successful. Costs should follow the event. One mitigating factor is that, in agreement with Mr Hodder, final demarcation may depend on the outcome of discovery. If the parties cannot agree costs, then submissions may be filed, no longer than three pages in length within 5 working days.
Schedule 1
For convenience, the allegations which the plaintiffs seek to have determined as part of a Stage 1 trial are set out here in summary form only. The full pleadings are relied on, as set out in the referenced paragraphs of the Third Amended Statement of Claim (3ASOC).
Conduct by defendants in relation to James Hardie Products
1. Which of the defendants were responsible for the design, development, manufacture, promotion and sale of Harditex, Titan, and Monotek (the James Hardie Products), and during which periods. {3ASOC paras 2-33]
Product Information
2, Which of the defendants were responsible for writing, authorising and publishing specifications, instructions and other information for use in conjunction with the James Hardie Products (the James Hardie Product Information). [3ASOC para 34]
Defects in James Hardie Products
3.Whether the James Hardie Products have the Defects and Risk Characteristics set out in Schedule 4 and 5 of the Third Amended Statement of Claim and whether, as result of the Defects and Risk Characteristics or otherwise the James Hardie Products:
a.are not weathertight in New Zealand conditions;
b.do not comply with Applicable Legal and Building Standards;
c.caused damage to the health and safety of occupants of buildings or to other parts of buildings, in which the James Hardie Products were installed.
(3ASOC para 35]
4.Whether each of the defendants knew or ought to have known from the early 1990s onwards that the James Hardie Products would or might not be weathertight, or would or might cause damage, and would nor might not comply with Applicable Legal and Building Standards. [3ASOC para 36]
Duty of care
5.Whether each of the 1st-3rd, Sth and 6th defendants owed a duty of care to the plaintiffs to take all reasonable steps to ensure that the James Hardie Products would:
a.Be weathertight in New Zealand conditions;
b.Comply with Applicable Legal and Building Standards; and
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c.Not cause damage to property or to the health and safety of occupants or visitors to buildings in which the James Hardie Products were installed. [3ASOC paras 38-40]
Breach of duty of care - defects, lack of testing
6.Whether each of the 1st-3rd, Sth and 6th defendants breached their duties
of care by:
a.Designing and developing the James Hardie Products with the Defects. (3ASOC para 41(a)]
b.Failing to carry out adequate or reliable testing, trials or research (including "Sirowet" or other facade performance testing) in order to:
i. Verify that the James Hardie Products would comply with applicable Legal and Building Standards, be weathertight in New Zealand conditions, and not cause injury to property or persons;
ii.Identify any or all of the Defects and Risk Charac(eristics which the James Hardie Products had or were likely to have; or
iii.Eliminate any and all such Defects and Risk Characteristics. [3ASOC para 41(b)-(d)]
c, Failing to modify or withdraw the James Hardie Products after they failed tests conducted by James Hardie in around May 2000 and by BRANZ in approximately January 2003. (3ASOC para 41(e)]
7.Whether each of the 1st, 2nd and Sth defendants breached their duties of care by manufacturing the James Hardie Products with the Defects and promoting and supplying or permitting to be supplied the James Hardie Products with the Defects. [3ASOC para 42]
Knowledge/failure to warn
8.Whether, once each of the defendants knew or ought to have known that the James Hardie Products would or might not be weathertight, would or might cause damage to property or to the health and safety of occupants or visitors to buildings in which the James Hardie Products were installed, and would or might not comply with Applicable Legal and Building Standards, they had a duty to warn and/or inform the plaintiffs and/or recall or withdraw the James Hardie Products. [3ASOC para 45-47]
9.Whether the defendants breached their duties to warn by failing to inform/warn the plaintiffs and/or recall or withdraw the James Hardie Products. [3ASOC para 48]
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Negligent misstatement - expertise, untrue statements
10.Whether the 1st-3rd, Sth and 6th defendants owed a duty of care to the plaintiffs to ensure that any statements they made or caused to be made about the James Hardie Products were true, accurate and complete and/or remained true, accurate and complete. [3ASOC para 51-52]
11”.Whether the 1st-3rd, Sth and 6th defendants made and/or authorised the James Hardie Product Statements. [3ASOC para 53]
12.Whether the 1st-3rd, Sth and 6th defendants failed to take reasonable care to ensure the James Hardie Product Statements were true, accurate and complete. [3ASOC para 54]
13.Whether the James Hardie Product Statements would lead a reasonable person to believe that the James Hardie Products when installed would:
a.Be weathertight in New Zealand conditions;
b, Comply with Applicable Legal and Building Standards; and
c.Not cause damage or harm to buildings or to the health and safety of occupants or visitors to the buildings in which they were installed. [3ASOC para 55]
14.Whether the James Hardie Product Statements would lead a reasonable person to believe that the1st-3rd, Sth and 6th defendants had not received any information or advice concerning the unsuitability of the James Hardie Products or the use of James Hardie Products in conjunction with other components as exterior weathertight cladding. [3ASOC para 56]
15.Whether the James Hardie Product Statements were not true, correct or complete in that:
a.The James Hardie Products.
i.do not comply with Applicable Legal and Building Standards;
ii.are not weathertight in New Zealand conditions; and
iii.have caused or will cause damage to buildings and to the health and safety of the occupants;
b.The 1st-3rd, Sth and 6th defendants had received information and/or advice concerning the unsuitability of the James Hardie Products or the unsuitability of their use in conjunction with other components as exterior weathertight cladding. [3ASOC para 57]
Consumer Guarantees Act 1993
16.Whether the 1st- 3rd and/or Sth defendants manufactured the James Hardie Products, being goods for the purposes of the Consumer Guarantees Act 1993. [3ASOC para 61J
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17.Whether, at all material times, the James Hardie brand was attached to the James Hardie Products. {3ASOC para 62]
18.Whether, as manufacturers of the James Hardie Products, the 1st-3rd and/or Sth defendants provided statutory guarantees in favour of the plaintiffs under the Consumer Guarantees Act 1993. [3ASOC para 64]
19.Whether the James Hardie Products failed to comply with the statutory guarantees of acceptable quality and correspondence with description. [3ASOC para 65]
Fair Trading Act 1986
20.Whether, at all material times, the defendants were in trade. [ASOC para 69]
21.Whether the James Hardie Products were goods for the purpose of the Fair Trading Act 1986. [ASOC para 70]
22.Whether the defendants engaged in conduct as follows:
a.Making the James Hai’die Product Statements and/or authorising them to be made;
b.Endorsing the James Hardie Product Statements by causing or permitted the James Hardie name and brand to be used in connection with the James Hardie Products and the James Hardie Product Statements;
c.Failing once they knew or ought to have known the Facts as to
Defects to inform and/or warn the plaintiWs and/or take reasonable steps to issue recalls and/or withdraw the James Hardie Products from the market. [3ASOC para 71]
23.Whether the defendants' conduct was misleading and deceptive or likely to mislead or deceive. [3ASOC paras 72-73]
24.Whether in making and/or authorising the James Hardie Product Statements, the 1st-3rd, Sth and 6th defendants made representations to the effect that the James Hardie Products were of a particular kind, standard, quality or grade in that when installed they would:
a.Comply with Applicable Legal and Building Standards;
b.Be weathertight in New Zealand conditions; and
c.Not cause damage or harm to buildings or to the health and safety of occupants or visitors to the buildings in which they were installed. [3ASOC para 75]
25.\/Whether the representations were false or misleading in breach ot s13(a) of the Fair Trading Act 1986. [3ASOC para 76-77]
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